Originally Published on August 20, 2020; Revised on August 7, 2021
In Swanson v. Morongo Unified School District, 232 Cal.App.4th 954 (2014), Lauralyn Swanson (“Swanson”), a teacher, sued the Morongo Unified School District (the “District”) alleging that the District: (a) discriminated against her because of her breast cancer diagnosis and because she took medical leave to receive treatment; (b) failed to reasonably accommodate her cancer-related health conditions by refusing to assign her to teach an available second grade class, which Swanson believed provided the best opportunity for her to teach while recovering from her cancer treatments; and (c) failed to engage in a good faith, interactive process to identify a reasonable accommodation for her cancer-related health conditions.
Although the trial court held in favor of the District, the Court of Appeal reversed the trial court’s ruling. The Court of Appeal’s decision is summarized below.
Facts and Procedural History
Swanson was an elementary school teacher with over 30 years of experience teaching kindergarten through sixth grade. During her career, she served in various roles, including as a “mentor teacher” and the interim coordinator for Claremont Graduate University’s intern teacher program.
In August 2006, the District hired Swanson as a technology and reading specialist and computer laboratory teacher at Yucca Valley Elementary School. Swanson received excellent performance evaluations from her principal, Jeffrey Turner (“Turner”). Turner told Swanson she could continue with the same teaching assignment the following school year. However, he subsequently left for another school, and the new principal, John Lowe (“Lowe”), changed Swanson’s teaching assignment to that of a “‘LANGUAGE!’ Reading Specialist.”
In July 2007, Swanson was diagnosed with breast cancer and had a masectomy. She informed Lowe of her diagnosis. She also expressed concern to Lowe that she lacked the necessary training for her new teaching assignment. Lowe told her not to worry because she could attend a week-long training session in August 2007 if she felt up to it. Although the training occurred just two weeks after her surgery, Swanson still attended the training. On the last day of the training, the trainer sent Swanson to the emergency room because of complications from her surgery.
Swanson was scheduled for radiation and chemotherapy treatments during Fall 2007. But Swanson delayed the treatments so that she could prepare lesson plans and other materials for her replacement while she was on leave. Swanson began her treatments in October 2007 and was on medical leave until March 2008. Because she missed so much of the 2007-2008 school year, Lowe did not submit a performance evaluation, and instead, gave Swanson a positive recommendation.
In June 2008, Lowe informed Swanson that he would not assign her to the reading specialist position she held during the 2007-2008 school year. He offered her a fifth-grade teaching assignment for the 2008-2009 school year instead. Swanson objected that this would be her third different assignment in three years and that her precarious health would prevent her from doing the work required for a new assignment. If she must be reassigned, Swanson asked if she could fill an opening at the second-grade level because she had recently taught that grade at a different school. Despite this request, Lowe gave the second-grade assignment to another teacher and assigned Swanson to teach kindergarten (even though he knew that she had not taught kindergarten in nearly 30 years). Swanson expressed concern about teaching kindergarten; her cancer treatments had damaged her immune system, and she feared that exposure to the many illnesses of kindergarten children would pose further health risks for her. Lowe refused to change Swanson’s teaching assignment.
In late September 2008, Swanson was forced to take medical leave when she was hospitalized for eight days with pancreatitis, pneumonia, and liver issues that she attributed to her kindergarten teaching assignment. She did not return to work until December 2008.
In January 2009, Lowe scheduled Swanson’s annual evaluation, which included observing her teach on three separate occasions. Before the observations, Swanson asked Lowe to provide her with the District’s pre-evaluation format, which describes the District’s expectations for each lesson and is provided to teachers before they are observed. Lowe promised to provide the pre-evaluation format, but he did so only after he completed all his observations of Swanson. Lowe evaluated Swanson’s performance as poor and gave her the option to either resign or to accept a remediation plan.
Swanson accepted the remediation plan, which included three additional observations. The plan also offered Swanson the opportunity to obtain assistance in addressing her deficiencies. Swanson requested a mentor teacher to observe her teaching and to make suggestions. Lowe promised to look into Swanson’s request, but never provided the requested assistance.
In February 2009, Lowe conducted an observation of Swanson. He gave Swanson a “meets expectation” rating on nearly every evaluation category. Lowe conducted a second observation a few days later, and his comments immediately after the observation implied that Swanson would receive another positive evaluation. But his tone changed dramatically when they met the next day to discuss the evaluation.
Lowe asked Swanson to resign in lieu of receiving a “non-re-elect” notice. He explained that under the Education Code, the District could offer no contract to Swanson for the next school year because she had not yet taught two complete school years in the District. He promised to provide her a positive evaluation for the second observation if Swanson resigned, but said he would give her a negative evaluation if she did not resign. Lowe cancelled the final observation because he said there was nothing Swanson could do to change his decision not to renew her contract. Swanson did not resign and Lowe gave her a negative evaluation for the second observation.
The District’s board of education voted not to renew Swanson’s contract for the 2009-2010 school year.
Swanson’s Disability Discrimination Clai
California’s Fair Employment and Housing Act (the “FEHA”) makes it an unlawful employment practice for an employer to terminate an employee because of his physical disability or medical condition. See Cal. Gov. Code section 12940(a). However, an employer may terminate an employee who has a physical disability or medical condition if he is unable to perform his essential duties even with a reasonable accommodation. See id. subd. (a)(1).
Under the FEHA, the term “[m]edical condition” includes “[a]ny health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.” Cal. Gov. Code sec. 12926(i). The term “[p]hysical disability” includes “any physiological disease, disorder, [or] condition” that affects the “neurological, immunological, musculoskeletal,” or any other major “body system[ ],” and “[l]imits a major life activity.” Cal. Gov. Code sec. 12926(m). The District did not dispute that Swanson had a medical condition and physical disability protected by the FEHA.
The District argued that it did not discriminate against Swanson and that instead, it decided not to renew her teaching contract because she continued to perform below expectations. In response to the District’s argument, Swanson contended that once she informed the District of her breast cancer and took medical leave to receive treatment, the District “began a course of conduct designed to set her up for failure by giving her difficult assignments without the resources required to succeed so the District later could use Swanson’s performance as a pretext for its decision not to renew her contract.” Swanson v. Morongo Unified School Dist., 232 Cal.App.4th 954, 967 (2014).
Finding in favor of Swanson, the Court of Appeal concluded that the evidence established the following disputed facts that create a triable issue on Swanson’s liability theory. For instance: (a) Swanson performed well in her teaching assignments during her first two years with the District, but the District gave her a new teaching assignment after she completed her cancer treatments; (b) the District gave Swanson the new assignment even though it knew that the new assignment would require her to spend additional time preparing to teach her new class and that Swanson’s weakened health condition impaired her ability to do so; (c) the District denied Swanson’s request to teach a second grade class similar to one she had taught recently and assigned the second grade class to another teacher instead; (d) the District assigned Swanson to teach kindergarten even though she had not taught kindergarten in almost 30 years and even though she had expressed concern that her weakened immune system could not protect her from the many illnesses in kindergarten classes; (e) Lowe never provided Swanson the pre-evaluation format she needed to prepare for her teacher observations; (f) the District failed to provide Swanson the mentor teacher she requested or any of the other requested training or assistance; and (g) Lowe asked Swanson to resign even though he gave her a positive review on the first teaching observation.
Swanson’s Failure to Accommodate Claim
Under the FEHA, an employer’s failure to make a reasonable accommodation for an employee’s known physical or mental disability is an unlawful employment practice. See Cal. Gov. Code sec. 12940(m). A reasonable accommodation is any modification or adjustment to the workplace that enables the employee to perform the essential functions of the job. Reasonable accommodations include job restructuring, part-time or modified work schedules, reassignment to a vacant position, and other similar accommodations for individuals with disabilities. See Cal. Gov. Code sec. 12926(p).
An employer has an affirmative duty to reasonably accommodate a disabled employee. Moreover, this duty to accommodate is a continuing duty that is not exhausted by one effort. “A single failure to reasonably accommodate an employee may give rise to liability, despite other efforts at accommodation.” Swanson, 232 Cal.App.4th at 969 (citing A.M. v. Albertsons, LLC, 178 Cal.App.4th 455, 464-65 (2009) (emphasis added)). However, an employer is not required to make an accommodation that would result in an “undue hardship” on the employer. Cal. Gov. Code sec. 12940(m).
The elements of a failure to accommodate claim are “(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” Swanson, 232 Cal.App.4th at 969 (citing Scotch, supra, 173 Cal.App.4th at 1010).
Swanson contended that the District failed to reasonably accommodate her cancer-related conditions when it refused her request to teach an available second grade class. According to Swanson, the second grade class assignment “was a reasonable accommodation that would have allowed her to perform her essential job functions because she recently had taught a second grade class when working in another district, and therefore was familiar with the curriculum and children of that age.” Swanson, 232 Cal.App.4th at 970.
In contrast, the District contended it was not required to grant her request for the second grade assignment because the FEHA “does not obligate an employer to choose either the best accommodation or the specific accommodation an employee seeks, but rather only a reasonable accommodation.” Id.
The Court of Appeal disagreed with the District. It noted that (a) “‘an employer has a duty to reassign a disabled employee if an already funded, vacant position at the same level exists.’” Id (citation omitted); and (b) “a disabled employee seeking reassignment to a vacant position ‘is entitled to preferential consideration.’” Id (citing Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 265 (2000).)
Thus, the Court of Appeal noted, the District “had to present evidence showing the second grade position Swanson sought was not available or otherwise was not a reasonable accommodation, or the fifth grade or kindergarten assignments the District offered were reasonable accommodations that would have allowed Swanson to adequately perform her essential job functions.” Swanson, 232 Cal.App.4th at 971. But the District produced no such evidence.
The Court of Appeal also rejected the District’s argument that it “would suffer undue hardship if teachers could choose their own teaching assignments.” Id. The Court of Appeal reasoned that Swanson “sought a specific assignment as an accommodation for her cancer-related conditions, not simply because she liked that assignment. Moreover, the District failed to present any evidence to show that granting Swanson’s request to teach second grade would impose an undue hardship on the District.” Id.
Swanson’s Failure to Engage in the Interactive Process Claim
The FEHA makes it “an unlawful employment practice … [¶] … [¶] [f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee…to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee…with a known physical or mental disability or known medical condition.” Cal. Gov. Code sec. 12940(n).
Unless his disability and the resulting limitations are “obvious,” an employee must initiate the interactive process. Swanson, 232 Cal.App.4th at 971. “Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith.” Id. “Both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process.’ [Citation.] ‘Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.’ [Citation.]” Id. at 971-72 (citation and quotation marks omitted).
“[T]he fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability…. If the employer is responsible for a later breakdown in the process, it may be held liable.” Id. at 972 (citing Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal.App.4th 952, 985 (2008)).
Swanson contended that the District failed to engage in the interactive process because “it would not discuss which teaching assignment would reasonably accommodate her cancer-related conditions and compromised immune system.” Id. at 972. Instead, the District “unilaterally transferred her from her reading specialist position to a fifth grade position, and then transferred her to a kindergarten position without considering or discussing her request for a second grade assignment.” Id.
In contrast, the District argued that “it engaged in the interactive process by switching her from fifth grade to kindergarten when she objected to the fifth grade assignment.” Id. The Court of Appeal rejected the District’s argument, finding that the District failed to present any evidence showing that it engaged in an ongoing dialogue regarding possible accommodations for Swanson. For instance, the Court of Appeal noted, the District offered “no evidence to show it discussed with Swanson the second grade assignment she sought or provided any explanation why it could not grant her request as a reasonable accommodation.” Id.
The full Court of Appeal opinion is available here.
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